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ENTERTAINMENT SOFTWARE ASSOC. v. BLAGOJEVICH

December 2, 2005.

ENTERTAINMENT SOFTWARE ASSOCIATION; VIDEO SOFTWARE DEALERS ASSOCIATION; and ILLINOIS RETAIL MERCHANTS ASSOCIATION, Plaintiffs,
v.
ROD BLAGOJEVICH, in his official capacity as Governor of the State of Illinois; LISA MADIGAN, in her official capacity as Attorney General of the State of Illinois; and RICHARD A. DEVINE, in his official capacity as State's Attorney of Cook County, Defendants.



The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiffs Entertainment Software Association, Video Software Dealers Association, and Illinois Retail Merchants Association sued several state and local officials seeking to enjoin the enforcement of Illinois's Violent Video Games Law and Sexually Explicit Video Games Law. Plaintiffs moved for a preliminary injunction, and the Court ordered a hearing. All parties consented to combine the preliminary injunction hearing with trial on the merits. This constitutes the Court's findings of fact and conclusions of law under the Federal Rules of Civil Procedure 52(a). For the reasons stated below, the Court concludes that both statutes violate the First Amendment and therefore issues a permanent injunction against their implementation.

Findings of Fact The plaintiffs are associations of entities that create, publish, distribute, sell, and rent video games. The Entertainment Software Association (ESA) represents video game creators and publishers; the Video Software Dealers Association (VSDA) represents home video retailers; and the Illinois Retail Merchants Association (IRMA) represents Illinois merchants.

  The ESA is comprised of publishers of interactive entertainment, including video games, computer games, and mobile games. Lowenstein Dep. at 18. Its mission is "to serve the business and public affairs interests of the entertainment software industry." Id. at 25. To achieve this mission, ESA implements a number of programs, such as government relations, anti-piracy enforcement, intellectual property policy, and media relations programs. Id. at 26. Among its many activities, ESA also evaluates proposed legislation regulating the entertainment software industry and responds to those proposals based on the mandate given by the membership. Members are updated on the ESA's positions on particular legislation, including state statutes regulating video games based on content, contemporaneously. Id. at 38.

  The VSDA is a trade association for the home video industry that includes retailers and distributors of home video products, including video games. Andersen Dep. at 7. The association's many activities include tracking proposed regulations of video games, responding to those regulations, and pursuing litigation if necessary. Decisions to engage in litigation are made by the VSDA board of directors. Although members do not vote on the VSDA's stance on all relevant legislation or on the association's decision to initiate litigation, they can weigh in on VSDA's actions in a numbers of ways, including telephone calls, emails, and letters. Id. at 30-43.

  IRMA has approximately one thousand retail members, though it is unclear how many sell or rent video games. Vite Dep. at 26. IRMA's activities include examining pending legislation in Illinois, developing position papers, and communicating the association's position to the General Assembly. IRMA communicates with its members about these activities through its website and a weekly newsletter published while the General Assembly is in session. Vite Dep. at 8-10. With regard to the legislation at issue in this case, IRMA discussed the proposed legislation with between fifty and one hundred members before it was passed. Id. at 61. IRMA staff typically determines whether the organization should participate in litigation after discussing the issue with affected members. Id. at 40-41. In deciding to join this case, IRMA president David Vite consulted with several leaders of the association and also consulted members directly affected by the legislation. Id. at 43, 55.

  The defendants are Illinois public officials: Rod Blagojevich is the Governor of Illinois; Lisa Madigan is the Attorney General of Illinois; and Richard Devine is the State's Attorney for Cook County, which includes Chicago.

  Video games are one of the newest and most popular forms of artistic expression. They most resemble films and television shows by telling stories through pictures, text, and sound, but they also parallel popular books, such as the Choose Your Own Adventure series, which enable readers to make decisions about how the plot and characters will develop. Video games are generally designed to entertain players and viewers, but they can also inform and advocate viewpoints. They are therefore considered protected expression under the First Amendment. See Am. Amusement Machine Ass'n v. Kendrick, 244 F.3d 572, 579 (7th Cir. 2001).

  The video game industry has adopted a voluntary rating system to advise consumers about the content of video games. The Entertainment Software Rating Board (ESRB), a division of the ESA, assigns ratings to games and provides content descriptors.*fn1 The rating system is voluntary. Most video game publishers, however, submit video games to the ESRB for review, and most video game retailers refuse to sell or rent games that have not been rated by the ESRB. Lowenstein Dep. at 72-73, 103-04.

  Illinois Public Act 94-0315, which was adopted in July 2002, expands the state's regulation of the sale and rental of video games. The Act amends 720 ILCS 5/11-21, which criminalizes the distribution to an individual under the age of eighteen of material that is "harmful to minors." It also creates two new criminal statutes: the Violent Video Games Law (VVGL) and the Sexually Explicit Video Games Law (SEVGL). Plaintiffs challenge the VVGL and the SEVGL, but they do not challenge the amendments to 720 ILCS 5/11-21.

  The VVGL establishes criminal penalties for selling or renting violent video games to minors, allowing such games to be purchased using a self-checkout electronic scanner, and failing to label such games with a two inch by two inch label stating "18". 720 ILCS 5/12A-25.*fn2 The statute defines "violent video games" as those that include:
depictions of or simulations of human-on-human violence in which the player kills or otherwise causes serious physical harm to another human. "Serious physical harm" includes depictions of death, dismemberment, amputation, decapitation, maiming, disfigurement, mutilation of body parts, or rape.
Id. 12A-10(e). Violations of the statute are punishable by fines ranging from five hundred to one thousand dollars. Id. 12A-15(a)-(c) & 12A-25(b).
  The SEVGL creates criminal penalties for selling or renting sexually explicit video games to minors, allowing such games to be purchased using a self-checkout electronic scanner, and failing to label such games with a two inch by two inch label stating "18". 720 ILCS 5/12B-15; 5/12B-25. The SEVGL has two additional requirements. Video game retailers must post eighteen by twenty-four inch signs within five feet of every video game display or point of sale or rental informing customers about the ESRB rating system, and they must make brochures about the ESRB rating system available to customers. Id. 12B-30 & 12B-35. The statute defines "sexually explicit video games" as including:
those that the average person, applying contemporary community standards would find, with respect to minors, is designed to appeal or pander to the prurient interest and depict or represent in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act or a lewd exhibition of the genitals or post-pubescent female breast.
Id. 12B-10(e).

  In adopting the VVGL and the SEVGL, the Illinois General Assembly made findings about the accessibility of violent and sexually explicit video games to minors. Specifically, the legislative record includes reports by the Federal Trade Commission and the Illinois State Crime Commission about the ability of minors to purchase M-rated video games. In 2004, the FTC found that sixty-nine percent of unaccompanied teenagers were able to purchase M-rated video games, Def.'s Exh. D to 56.1(a) Statement at BL 169. In 2005, the Illinois State Crime Commission found that a fifteen-year old boy was able to buy M-rated games at eleven of fifteen, or seventy-three percent, of retailers visited. Id. at BL 266-69. The 2004 FTC study also examined whether unaccompanied teenagers could purchase analogous media products in other formats. The FTC concluded that eighty-one percent of unaccompanied minors could purchase R-rated movies, and eighty-three percent could purchase music with explicit lyrics — far more than were able to purchase M-rated video games. Id. at 152, 160.

  With regard to the VVGL, the legislative record includes scholarly articles, news articles, written testimony, and transcripts of House debates and House Civil Judiciary Committee Hearings discussing the impact of violent video games on minors. See generally Ex. D. to Def.'s Rule 56.1(a) Statement. Among other things, the record includes seventeen scholarly articles contending that minors become more aggressive when exposed to media violence, including video game violence. See generally, id. at BL 00075-00090, 000096-00131, 00328-00633. The same person — Dr. Craig Anderson — authored or co-authored fourteen of these articles; Dr. Douglas Gentile, a colleague of Dr. Anderson's, authored one article; and Dr. William Kronenberger, who has relied on Dr. Anderson's research in developing his own studies, authored the other two articles. See id.

  With regard to the SEVGL, the Illinois General Assembly found "sexually explicit video games inappropriate for minors." 720 ILCS 5/12B-5. The legislative record does not include scholarly articles or expert testimony on this issue, but there are comments from legislators contending that the sexually explicit content in many video games is inappropriate for children. See e.g., Ex. D. to Def.'s Rule 56.1(a) Statement at BL 00006, 00066 (Rep. LaVia, discussing video games with "vivid pictures of nudity," images of characters "defecating on people," and rewards for "sleeping with prostitutes"). On July 25, 2005, the Act was signed into law. On the same day, plaintiffs filed this lawsuit. Specifically, plaintiffs sought declaratory and injunctive relief against enforcement of the VVGL and SEVGL on the ground that the statutes violate their constitutional right to free expression. The plaintiffs also moved for a preliminary injunction to prevent the statutes from going into effect on January 1, 2006. Defendants responded by filing motions to dismiss for lack of standing, and, in the case of defendants Madigan and Devine, based on their purported immunity from suit under the Eleventh Amendment. Defendant Blagojevich also filed a partial motion for summary judgment on the claims regarding the SEVGL, in which defendant Madigan subsequently joined.

  On November 14 and 15, this Court held an evidentiary hearing on the effect of violent video games on youth. With the agreement of the parties, this Court consolidated the hearing on the preliminary injunction with trial on the merits pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure.

  The evidence presented via live witnesses concerned two main issues: first, whether minors who play violent video games experience an increase in aggressive thoughts, aggressive affect, and aggressive behavior, and second, whether minors who play such games experience a decline in brain activity in the region of the brain that controls behavior. The parties also agreed that the Court could consider as evidence the affidavits that had been submitted as part of the preliminary injunction briefing, as well as deposition testimony of certain witnesses.

  1. Effect of violent video games on aggressive thoughts and behavior

  Dr. Craig Anderson, a psychologist and professor at Iowa State University, testified on behalf of the defendants. Dr. Anderson summarized research, including his own, regarding the relationship between minors' exposure to violent video games and aggressive thoughts and behavior. Based on this research, Dr. Anderson testified that "it seems clear that exposure to violent video games increases aggressive behavior, aggressive thinking, physiological arousal, aggressive feelings, and is also associated with a decrease in prosocial behavior." Tr. 212-13.

  Dr. Anderson's studies on the connection between media violence and aggressive cognition and behavior are rooted in his broader research into aggression. Specifically, Dr. Anderson developed his "general aggression model" to explain how an individual's personal characteristics and experiences trigger aggressive thoughts or responses to particular situations and how this cycle or cycles can make aggressive thoughts and behaviors more accessible. According to Dr. Anderson, an individual's personal characteristics and experiences — particularly with violence — prime or activate aggressive thoughts and teach aggressive "scripts," making it more likely that he or she will have aggressive reactions to particular situations. Tr. 212-21.

  Dr. Anderson testified that playing violent video games is one activity that primes aggressive thoughts and teaches aggressive scripts. He stated:
In violent video games, you rehearse really the whole sequence [of aggression]. You rehearse, you practice being vigilant, that is, looking for the source of the threat. You practice identifying sources of threat. You practice making decisions about how to respond to that threat. And eventually, you actually carry out some form of action, typically a violent action to deal with that threat, clicking a mouse or something on the keyboard or a pretend sort of gun of some kind.
Tr. 227-29. As a result of regularly playing violent video games, Dr. Anderson testified, these scripts or knowledge structures become "chronically accessible" and ultimately become "automatized." Tr. 229-30.

  The research underlying Dr. Anderson's testimony, however, does not support such a stark and sweeping conclusion. We begin by providing an overview of the studies cited by Dr. Anderson to support his conclusions.

  One of the articles Dr. Anderson published involved two studies of the effects of violent video games on measures of aggression on college students. This study provided the basis for the Indianapolis ordinance regulating violent video games that was struck down in Kendrick. Kendrick, 244 F.3d at 578.*fn3 In the first study, Dr. Anderson and Dr. Karen Dill of Lenoir-Rhyne College conducted a survey of college students regarding exposure to violent video games and aggressive behavior, using components of the National Youth Survey as a measure. Dr. Anderson found "a strong positive correlation between video game exposure and aggressive behavior." Tr. 251. He conceded, however, that once the results were adjusted to exclude non-serious behavior, such as throwing snowballs, less than ten percent of the participants reported engaging in aggressive behavior. Tr. 298-302. Dr. Anderson also indicated that exposure to violent video games only incrementally affected the amount of aggressive behavior they engaged in. Tr. 278-83.

  In a second study, Dr. Anderson conducted an experiment in which participants played a violent video game, Wolfenstein 3D, or a non-violent video game, Myst. The participants were then asked to participate in a task in which they were supposed to "compete" with someone outside the room and administer a noise blast to the "loser" whenever they won. Based on this experiment, Dr. Anderson concluded that violent video games caused an increase in aggressive behavior, because participants who played Myst administered a longer noise blast than the participants who played Wolfenstein 3D. In his testimony, however, Dr. Anderson stated that the difference between the two groups was a matter of milliseconds. Tr. 329.

  Dr. Anderson also discussed three additional studies he conducted using college students. In the first experiment, half the students played violent video games and half played non-violent video games. They were then given a list of partially completed words — many of which could have been completed to form an aggressive word — and asked the participants to finish the words. The students who played the violent video game were more likely to fill in the blank to form an aggressive word, leading Dr. Anderson and his colleagues to conclude that exposure to the violent video game had increased their aggressive thoughts. Tr. 235-38.

  In the second experiment, half the students played a violent video game and half played a non-violent video game. They then went through time trials in which they were led to believe they were competing against someone in the next room. In the first series of time trials, the participants went through a series of time trials in which they were "punished" with a noise blast from a "competitor" when they lost. There were, in fact, no competitors: the noise blasts administered to the participants were controlled by a computer. Half received random blasts, and the other half received blasts that increased in intensity. In the second series of time trials, the participants administered a noise blast to their "competitor" if they won. Dr. Anderson found that the students who had played violent video game and received random noise blasts administered more intense noise blasts than all of the students who played the non-violent video games. He therefore concluded that exposure to violent video games increased an individual's aggressive behavior.

  Notably, the students who played violent video games and received increasingly intense noise blasts administered the lowest intensity noise blasts. Though that seems to contradict his finding, Dr. Anderson stated that previous research indicates that results from participants who played violent video games and received random noise blasts are more relevant. Tr. 238-40. Though the Court is skeptical about the explanation of these contradictory results, it is willing to assume for purposes of discussion that Dr. Anderson's conclusion is correct. The Court, however, questions the overall import of Dr. Anderson's findings, given that on a one to ten scale of intensity, the most "aggressive" violent video game players administered an average blast of 5.93, and the least "aggressive" non-violent video game players administered an average blast of 3.98. There was only a two point difference, and both averages were in the middle of the intensity scale. See Craig A. Anderson et. al., Violent Video Games: Specific Effects of Violent Content on Aggressive Thoughts and Behavior, 36 Advances Experimental Soc.Psychol. 199, 215-24 (2004) (hereinafter, "Violent Video Games: Specific Effects").

  In the final experiment, half the students played two violent video games and half of them played two non-violent video games. The violent video games were subdivided into those with human targets and those with non-human targets. They then engaged in the same noise blast task as the participants in the second experiment. The students who played violent video games gave "more or higher punishment levels to their opponents than those who played one of the nonviolent games." Tr. 241-42. Dr. Anderson's study, however, indicates that those participants who played a violent video game administered an average noise blast that was less than one point higher than the average noise blast of non-violent video game players. See Anderson, "Violent Video Games: Specific Effects" at 229. Dr. Anderson also found that the participants' reactions to playing a violent video game with human targets was the same as their reactions to playing one with non-human targets. Tr. 327-28.

  Dr. Anderson stated that there has only been one reliable longitudinal study into the impact of violent video games on aggression in minors. Such studies, which examine the effects of a particular variable at two or more points in time, are important because they can measure longer term effects, rule out alternative explanations for particular behavior, and help identify the cause of a particular behavior. Tr. 312. In this study, which is still undergoing peer review, Dr. Douglas Gentile, a colleague of Dr. Anderson's at Iowa State University, interviewed third-, fourth-, and fifth-graders about the level of violence in the video games they played during the six month period of the study. Then, using reports from parents and teachers, he determined the child's level of aggressive behavior at the beginning and end of the study to assess whether such behavior had increased.

  According to Dr. Anderson, Dr. Gentile's longitudinal study showed that those children with a higher exposure to violent video games were more likely to have been in a fight by the end of the study, even after controlling for whether the child had been in a fight — and likely had a proclivity for aggression — before the study began. Tr. 254-261. From this longitudinal study, Dr. Anderson concluded that "[w]hat is clear is that regardless of the initial cause, playing violent video games still makes children more aggressive." Def. Exh. 8, Douglas A. Gentile and Craig A. Anderson, Violent Video Games: The Effects on Youth, and Public Policy Implications, in Children, Culture, and Violence, at 232 (N. Dowd et. al. eds.) (forthcoming) (emphasis in original). The total increase in aggressive behavior between the beginning and end of the study, however, was not very large; there was a high (0.4 to 0.5) correlation between aggression at the beginning and end of the study; and at most, only four percent of the increase in aggression was associated with exposure to video game violence. Tr. 318-21.

  Finally, Dr. Anderson discussed the results of three meta-analyses he conducted in 2001, 2003, and 2004. In a meta-analysis, a researcher compiles all of the studies that have been conducted in a particular area, combines the results from those studies, and makes conclusions based on the body of research as a whole. In each of these meta-analyses, Dr. Anderson found that exposure to violent video games was associated with aggressive thinking and behavior. The studies differed, however, because he added new data and adjusted his methodology with each meta-analysis. For example, in the 2003 meta-analysis, Dr. Anderson conducted a separate breakdown of studies involving participants who were eighteen or younger, and in the 2004 meta-analysis, he did a separate analysis of studies that used "best practices."*fn4 Nonetheless, his conclusion about the link between exposure to violent video games and aggression remained the same. Tr. 263-64.

  Dr. Jeffrey Goldstein, a social psychologist at the University of Utrecht in the Netherlands, and Dr. Dmitri Williams, an assistant professor of communications at the University of Illinois at Urbana-Champaign, testified for the plaintiffs,*fn5 and they responded to Dr. Anderson's testimony. Dr. Goldstein has conducted research into whether video games help improve cognitive skills, Goldstein Dep. at 53-54; Dr. Williams conducted an intensive one-month study for his doctoral dissertation on individuals who played a violent, multi-player computer-based video game. Tr. at 152-58. They agreed that there is a correlation between an exposure to video game violence and increases in aggressive cognition and behavior, but disagreed with Dr. Anderson's conclusion that the research establishes that a exposure to violent video games causes increases in aggressive thinking and behavior. Goldstein Dep. at 84; Tr. 130.

  Dr. Goldstein and Dr. Williams shared a number of the same concerns with the methodology and conclusions of research regarding violent video games cited by Dr. Anderson. With regard to methodology, they were concerned that these studies defined aggressive thoughts and behavior vaguely (e.g., equating aggressive play with aggressive behavior), administered problematic tests for measuring aggression (e.g., Stroop tests and noise blasts), used violent and non-violent video games that were too dissimilar (e.g., Wolfenstein 3D and Myst), and failed to address the context of game playing (e.g., asking subjects to play for too short a time and without others around them). Goldstein Dep. at 36, 70-71, 79-82, 89-90, 97-98, 116-18, 121; Goldstein Aff. ¶¶ 7-8, 11-12; Tr. 138-51, 157-71. With regard to their conclusions, Dr. Goldstein and Dr. Williams noted that Dr. Anderson not only had failed to cite any peer-reviewed studies that had shown a definitive causal link between violent video game play and aggression, but had also ignored research that reached conflicting conclusions. Dr. Goldstein and Dr. Williams noted that several studies concluded that there was no relationship between these two variables. They also cited studies concluding that in certain instances, there was a negative relationship between violent video game play and aggressive thoughts and behavior (e.g., initial increases in aggression wore off if the individual was allowed to play violent video game for longer period). Goldstein Aff. ¶¶ 10, 22, 41-42; Goldstein Dep. at 182-89.

  Though the Court believes that many of the measures of aggression used in violent video game research are likely valid, we agree with Dr. Goldstein and Dr. Williams that neither Dr. Anderson's testimony nor his research establish a solid causal link between violent video game exposure and aggressive thinking and behavior. As Dr. Goldstein and Dr. Williams noted, researchers in this field have not eliminated the most obvious alternative explanation: aggressive individuals may themselves be attracted to violent video games. Goldstein Aff. ¶ 33; Tr. 133.

  Even if one were to accept the proposition that playing violent video games increases aggressive thoughts or behavior, there is no evidence that this effect is at all significant. Dr. Anderson provided no evidence supporting the view that playing violent video games has a lasting effect on aggressive thoughts and behavior — in other words, an effect that lingers more than a short time after the player stops playing the game. Based on general psychological theories and long-term studies of television and movie violence, Dr. Anderson hypothesizes that frequently and intensely playing violent video games will have a lasting effect on young players. Tr. 291-92. He does not, however, cite any data or studies to back up his hypothesis. In most studies, test subjects play a game for between ten and seventy-five minutes, and only one study — Dr. Gentile's — included an assessment of the effect of regular violent video game play over a longer period of time.*fn6 This research is insufficient to draw conclusions about the long-term impact of video games on minors.

  Dr. Anderson also has not provided evidence to show that the purported relationship between violent video game exposure and aggressive thoughts or behavior is any greater than with other types of media violence, such as television or movies, or other factors that contribute to aggression, such as poverty. In fact, several of the studies he uses to support his conclusions examine media violence generally and do not disaggregate the effect of video game violence or compare the effects of video game violence to these or other forms of media violence.

  Finally, the Court is concerned that the legislative record does not indicate that the Illinois General Assembly considered any of the evidence that showed no relationship or a negative relationship between violent video game play and increases in aggressive thoughts and behavior. The legislative record included none of the articles cited by Dr. Goldstein or Dr. Williams. It included no data whatsoever that was critical of research finding a causal link between violent video game play and aggression. These omissions further undermine defendants' claim that the legislature made "reasonable inferences" from the ...


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